FUNCTIONAL EQUIVALENT OF THE BORDER
It is well settled law that warrantless searches of aircraft and luggage are permitted at an international border or its “functional equivalent”. Almeida-Sanchez v. U.S., 413 U.S. 266, 272, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973).
However, “there has [to be] no time or opportunity for the object to have changed materially since the time of crossing, and the search is conducted at the earliest practicable point after the border was crossed”. U.S. v. Niver, 689 F.2d 520, 526 (5th Cir. 1982); U.S. v. Emmens, 893 F.2d 1292 (11th Cir. 1990) [agents could lawfully enter private hangar on residential curtilage as same was functional equivalent of border].
“The extended border search still requires a showing beyond reasonable certainty both that the border has been crossed and that conditions have remained unchanged since the time of the border crossing.” U.S. v. Richard, 638 F.2d 765 (5th Cir.), cert. denied, 454 U.S. 1097 (1981). See also Almeida-Sanchez v. U.S., 413 U.S. 266, 272, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973); U.S. v. Amuny, 767 F.2d 1114 (5th Cir. 1985)
[proof that vehicle had mere opportunity to cross border is not adequate to demonstrate to reasonable certainty that vehicle has, in fact, crossed international border and therefore may be searched without showing of probable cause at functional equivalent of border]. But see U.S. v. Henke, 775 F.2d 641 (5th Cir. 1985) [that border crossing not necessary to justify border stop where other factors are sufficient];
U.S. v. Mayer, 620 F. Supp. 249 (D. Utah 1985) [border search of airplane justified by low altitude and constant course inconsistent with usual traffic patterns in the area and hanger containing airplane reasonably certain to have crossed the border may be searched under same rationale as car, not known to have crossed the border, reasonably certain to contain parcel that has crossed the border]; U.S. v. Moreno, 778 F.2d 719 (11th Cir. 1985) [that border search exception applies even if determination to search is made before actual border crossing was ascertained].
The mere fact that an investigatory stop is effectuated near the border by border patrol agents does not require application of the Brignoni-Ponce “roving Border Patrol” standard in lieu of the Terry standard. U.S. v. Miranda-Perez, 764 F.2d 285 (5th Cir. 1985).
The Fifth Circuit held that permanent highway checkpoints located on highways that do not cross the U.S.-Mexico border are not the “functional equivalent” of the border for purposes of Fourth Amendment searches, even where the highway closely parallels the border. U.S. v. Jackson, 825 F.2d 853 (5th Cir. 1989).
Disassembly of a gas tank as part of a “routine” border search does not require reasonable suspicion where the practice is just considered “routine.” U.S. v. Flores-Montano, 541 U.S. 149 (2004); U.S. v. Chacon, 330 F.3d 323 (5th Cir. 2003) [A routine stop may blossom and extend a normal immigration stop to a search for drugs so long as this extension is based upon consent or probable cause].
BORDER PATROL STOP
U.S. v. Alvarado-Garcia, 781 F.2d 422, 425 (5th Cir. 1986), overruled on other grounds by U.S. v. Bengivenga, 845 F.2d 593 (1988). Roving border patrol stop of a dump truck was justified where the agents:
“[R]easonably inferred from the absence of gravel-hauling activity in the area, the usual patterns of traffic there, the proximity to the border, information about recent smuggling activities involving dump trucks, Alvarado’s attempt to evade them, and the large storage capacity of the dump truck. ” U.S. v. Alvarado-Garcia, 781 F.2d at 425.
Since the stop did not constitute a custodial arrest, the driver’s admission as to truck’s contents could provide probable cause for driver’s arrest and the search of that truck. U.S. v. Alvarado-Garcia, 781 F.2d at 425- 27.
U.S. v. Pallares-Pallares, 784 F.2d 1231, 1233-34 (5th Cir. 1986).
The Fifth Circuit held that the Brignoni-Ponce test for “reasonable suspicion” to stop was satisfied, despite lack of evidence of recent border crossing, where two vehicles, appearing heavily loaded, were traveling in close proximity on a highway frequented by smugglers of undocumented aliens on the Fourth of July, and one driver frequently observed the officers in his rear view mirror. U.S. v. Pallares-Pallares, 784 F.2d at 1233-34.
Brignoni-Ponce test was held not to be satisfied, however, where occupants of unevenly painted, early model car were Hispanic and “kind of dirty looking” and appeared nervous as the agent’s unmarked patrol car quickly approached, then pulled along side at the same speed. U.S. v. Ortega-Serrano, 788 F.2d 299, 301-302 (5th Cir. 1986).
The Ninth Circuit has held the border patrol in the State of Washington to have engaged in “a pattern” of such illegal stops. Nicacio v. I.N.S., 797 F.2d 700 (9th Cir. 1986).
A border patrol agent had probable cause to arrest defendant as an illegal alien where agent saw defendant emerge from frequently used conduit of illegal entry, other aliens identified the defendant as undocumented, and defendant claimed to have left his resident alien card at home. U.S. v. Tarango-Hinojos, 791 F.2d 1174 (5th Cir. 1986).
The crossing of an international border justified customs search. Photocopying of discovered documents was supported by reasonable suspicion of relation to customs violations. U.S. v. Fortna, 796 F.2d 724, 738-39 (5th Cir. 1986).
SPLIT IN CIRCUITS AS TO STANDARD [“REASONABLE SUSPICION” OR “CLEAR INDICATION” REQUIRED]
See Bush v. St. Tamany Parish, 754 F.2d 1132 (5th Cir. 1984) [agents lacked reasonable suspicion to stop vehicle for possible customs violations thus making the stop illegal no reasonable suspicion that the vehicle contained contraband]; U.S. v. Vega-Barvo, 729 F.2d 1341 (11th Cir. 1984) [“personal indignity suffered by the individual searched controls the level of suspicion required to make the search reasonable X-rays do not require physical contact, they do not expose intimate body parts, and hospital generally will not perform an X-ray procedure without a person’s consent. Additionally, an X-ray is one of the more dignified ways of searching the intestinal cavity. …Without a showing that routine abdominal X-rays pose a significant health risk, it would be inappropriate to impose stringent Fourth Amendment constraints on their use in border searches. We hold that an X-ray while more intrusive than a frisk is no more intrusive than a strip search].
“The …strip search requires a particularized ‘reasonable suspicion’…. We must now evaluate the [X-ray search] in light of the level of suspicion required by the reasonable suspicion test in the context of a strip search.” U.S. v. Vega-Bravo, 729 F.2d at 1349.
SUSPECT WHO REFUSES X-RAY MAY BE DETAINED UNTIL HE EXCRETES CONTRABAND
U.S. v. Mosquera-Ramirez, 729 F.2d 1352, 1354, 1357 (11th Cir. 1984).
“A review of the facts reveals that the customs inspector’s suspicion that defendant was carrying drugs internally was based on articulable suspicious behavior sufficient to make an X-ray search reasonable….
The detention of persons at the border long enough to reveal by natural processes that which would be disclosed by a more expeditious X-ray search cannot be held to be an unreasonable seizure. Nor can the search of the results of that natural process be held to be an unreasonable search.” U.S. v. Mosquera- Ramirez, 729 F.2d at 1354, 1357. See also U.S. v. Ogberaha, 771 F.2d 655 (2d Cir. 1985) [vaginal searches of women at border only requires a reasonable suspicion]; U.S. v. Oyekan, 786 F.2d 832 (8th Cir. 1986) [an involuntary x-ray examination is justified by reasonable suspicion of drugs being carried in the alimentary canal. The key is the presence of (1) articulable facts, (2) particularized as to the person, and
(3) as to the place].
However, the Ninth Circuit has held that a higher standard than “reasonable suspicion” described as “clear indication” or “plain suggestion” is required for X-Ray or lengthy detention to hear nature’s call. U.S. v. Hernandez, 731 F.2d 1369, 1371-72 (9th Cir. 1984).
“X-ray and body cavity searches are more intrusive than a strip search. Such searches require a ‘clear indication’ or ‘plain suggestion’ that the person is carrying contraband within his body…. In this case, the officers had a strong suspicion that de Hernandez was carrying drugs in her body, but for more than 16 hours they did not apply for a court order. The officers decided, instead, to wait for nature to provide the stronger evidence that would support an order. This decision necessarily impacted both the comfort and the dignity of a human being. The degree of suspicion necessary to justify a detention for the purpose of having a suspect produce a bowel movement has not been established. [w]hen in doubt the customs officers should present their information to a magistrate and permit the judicial officer to exercise judicial discretion in striking the delicate balance between human rights and the practical necessities of border security.
In the case at bar, there was a justifiably high level of official skepticism about the woman’s good faith as a tourist; but at the same time the officers knew that thousands of unusual looking persons cross international borders daily on all sorts of errands, many of which are wholly innocent. At the time the officers offered de Hernandez the alleged choice of taking the next plane back to Bogota (and remaining under observation during the wait), or submitting to a custodial x-ray examination, the officers knew… that the woman would suffer many hours of humiliating discomfort if she chose not to submit the x-ray examination. Under the circumstances of this Hobson’s choice, one can hardly characterize as voluntary any decision on the part of de Hernandez to consent to wait under observation. Rather, the officers effectively decided that if she did not wish to submit to an x- ray examination, she could just wait until natural processes made that type of examination unnecessary, no matter how long that might be.” U.S. v. Hernandez, 731 F.2d at 1371-72.
See U.S. v. Montoya De Hernandez, 473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 371 (1985) [a 16 hour detention of smuggler with suspected contraband in anus prior to seeking warrant was held not unreasonable].
The Fifth Circuit announced a rule (bothered by a 60 hour detention) applied to all government agents and agencies which hereafter detain a suspected alimentary canal smuggler.
“Henceforth all agencies,…shall notify the local U.S. Attorney within 24 hours of detaining of such a suspected smuggler. The U.S. Attorney shall …immediately notify a district or magistrate judge with jurisdiction and the detainee’s attorney or local public defender’s counsel appointed by the Court. In addition, the U.S. Attorney shall make a daily report until detention is terminated or the person is brought before the Court pursuant to charges.” Adekunle v. U.S., 980 F.2d 985 (5th Cir. 1992), cert. denied, 508
U.S. 924 (1993). See also U.S. v. Adekunle,2 F.3d 559 (5th Cir. 1993), vacated in part reinstated in part on reh’g.
The Second Circuit has held that a pat-down of the outer clothing of a person entering the United States at the border falls within the class of routine border searches and requires neither probable cause nor reasonable suspicion, even though it is more intrusive than intrusion into personal belongings such as a wallet or handbag.
U.S. v. Charleus, 871 F.2d 265 (2d Cir. 1989).
LAPTOP COMPUTER SEARCHES
The Department of Homeland Security has recently announced a new policy with regard to laptop searches which raise constitutional concerns. In a July 16, 2008 policy memorandum, DHS announced that Border Patrol agents, “absent individualized suspicion” seize laptop computers and other electronic devices as well as documents at the border and have them sent off-site for further evaluation including translation or unencrypting the data found on the computer.
BORDER EXIT SEARCHES
Under the provisions of 31 U.S.C. ‘ 5317, customs officers have statutory authority to conduct warrantless exit searches on those departing the United States. United States v. Berisha, 925 F.2d 791 (5th Cir. 1991). The border search exception to the Forth Amendment’s warrant requirement usually applied to incoming cargo and baggage is equally enforceable to outgoing items. See U.S. v. Odutayo, 406 F.3d 386 (5th Cir 2005)
Since the standard for an extended border search requires a showing beyond a reasonable certainty that the border has been crossed, it is logical to assume the standard for an exit search would, at a minimum, be a showing of reasonable certainty that a border crossing is intended.” See U.S. v. Niver, 689 F.2d 520, 526 (1982).